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Marciniak v. Brennan

United States District Court, N.D. Illinois, Eastern Division

December 14, 2017

Celina M. Marciniak, Plaintiff,
Megan J. Brennan, Defendant.



         Plaintiff Celina M. Marciniak filed this lawsuit alleging she was discriminated against based on a disability when she was forced to resign from her job with the U.S. Postal Service (“USPS”). Defendant Megan J. Brennan, Postmaster General, filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. R. 38. For the reasons that follow, the Court grants Defendant's motion.

         Standard of Review

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The district court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a nonmovant must produce more than “a mere scintilla of evidence” and come forward with “specific facts showing that there is a genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).


         The following facts are undisputed unless otherwise noted. Marciniak began working for the USPS in August 2014 as a City Carrier Assistant at the DeKalb, Illinois Post Office. She was hired as a temporary appointment that expired July 27, 2015. R. 40, 45 (¶ 1). On either August 26 or 27, 2014, Marciniak sprained her right ankle while delivering mail. R. 40 (¶ 16); R. 45 (¶ 8). After recovering from her injury, she was evaluated as fit for duty with no restrictions. But she still suffered pain and had to tape her ankle. R. 40 (¶ 16); R. 45 (¶ 9). She returned to work on September 9, 2014. A few days later, she was told to go home and not to return until her supervisor called. R. 40 (¶ 16); R. 45 (¶ 10).[1] She was called back to work on September 16, 2014. That morning, just as she was clocking in, the Postmaster asked her to come into his office, whereupon he informed her that, because she was injured, he was giving her a choice to resign or be fired. Marciniak further alleges that the Postmaster informed her that if she was fired, she could never apply for a position with the post office again, so she resigned. R. 40 (¶ 17); R. 45 (¶ 11); R. 25 at 72.


         A. Local Rule 56.1

         As an initial matter, USPS argues that Marciniak has failed to comply with Local Rule 56.1. See R. 47 at 2-6. While pro se litigants are required to comply with the local rules regarding summary judgment filings, Marciniak has made a good faith effort to do so. Her response did not comply with all aspects of the local rule, but even attorneys frequently violate many of the Rule's requirements. The factual issues in this case are not complex, and Marciniak's noncompliance did not interfere with the Court's ability to discern the disputed facts from the undisputed ones. Given these circumstances, the sincerity and earnestness with which Marciniak has pursued her claims, her good faith in attempting to satisfy Local Rule 56.1, the judicial resources that would have to be expended to address USPS's arguments based on the local rule, and the judicial preference for resolving cases on the merits, the Court declines to apply Local Rule 56.1 strictly as suggested by USPS. The Court instead will consider the parties' fact statements in conjunction with the record itself to determine the undisputed facts and resolve USPS's motion.

         B. Timeliness Of Marciniak's EEOC Complaint

         Before a federal employee may bring a civil action for discrimination against her employer, the employee first must exhaust her administrative remedies. Green v. Brennan, 136 S.Ct. 1769, 1775 (2016) (citing 42 U.S.C. § 2000e-16(c)). To exhaust those administrative remedies, EEOC regulations require, inter alia, that an aggrieved federal employee claiming employment discrimination “must initiate contact with a[n Equal Employment Opportunity (“EEO”)] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). “This deadline is construed as a statute of limitations and not as a jurisdictional prerequisite.” Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995).

         It is undisputed that the adverse employment action at issue, Marciniak's forced resignation, occurred on September 16, 2014. R. 1 at 5. The 45-day period in which Marciniak was required to have contacted an EEO counselor thus expired on October 31, 2014. Marciniak's first contact with an EEO counselor did not occur until February 17, 2015, one hundred fifty-four days after her termination. In short, the facts are undisputed that Marciniak failed to satisfy the 45-day statute of limitations.

         While the rule is not jurisdictional, claims will be “barred if the forty-five day requirement is not satisfied and there is no occasion for equitable tolling.” Doe v. Oberweis Dairy, 456 F.3d 704, 708 (7th Cir. 2006); see also Ester v. Principi, 250 F.3d 1068, 1071 (7th Cir. 2001). Accordingly, USPS's motion for summary judgment turns on whether Marciniak's failure to satisfy the 45-day requirement is excused because the statute of limitations was tolled. See Everage v. Runyon, 998 F.2d 1016, 1993 WL 272503, at *3 (7th Cir. 1993) (unpublished) (“where the plaintiff has failed to contact the EEO counselor in a timely fashion, he must be given the opportunity to raise equitable arguments, such as tolling, waiver, and estoppel, that might excuse his failure to comply with the time limitation. Should the plaintiff fail to justify his tolling the limitations period, his case must be dismissed.”). Marciniak offers several reasons why equitable tolling should be applied here. The Court addresses each of those arguments below.

         1. Tolling Based On Marciniak's Filing Of MSPB Appeal

         Marciniak argues that she should be excused from the 45-day EEO counselor contact rule because she “read online” that she could file either a complaint with the Merit Systems Protection Board (“MSPB”) or a discrimination complaint with the agency-employer, that “it turns out” the MSPB did not have jurisdiction over her complaint, and that she “did not know this until the MSPB ruling.” R. 44 at 1.

         The MSPB hears and adjudicates disputes concerning personnel actions taken by the federal government against employees covered by the Civil Service Reform Act, 5 U.S.C. § 1101 et seq.[2] “A federal employee aggrieved by a personnel action that is reviewable by the MSPB has two paths of redress if he attributes the employing agency's decision, at least in part, to discriminatory animus. One option is to file with the agency a ‘mixed case complaint'-an administrative complaint alleging prohibited employment discrimination . . . . The second option is to bypass the agency's administrative process and file a ‘mixed case appeal' directly with the MSPB.” McCarthy v. Vilsack, 322 F. App'x 456, 457-58 (7th Cir. 2009) (internal citations omitted) (emphasis added); see 29 C.F.R. § 1614.302(a).

         Marciniak sought redress for her forced resignation using the second route- a mixed case appeal with the MSPB-which she filed on November 26, 2014. In a decision issued on January 26, 2015, the MSPB dismissed Marciniak's appeal for lack of jurisdiction, finding as follows:

The Board has jurisdiction to hear appeals that allege involuntary resignation. However, the Board lacks jurisdiction to hear such cases if the employee's status takes the case out of the Board's purview. [citing, inter alia, Link v. Department of the Navy, 3 M.S.P.R. 187, 189 (1980) (the appellants' alleged involuntary resignations during their probationary periods in lieu of termination provided them with no greater right of appeal to the Board than they would have had if they had been terminated during their probationary periods)].
That is the case here. The appellant, who worked for the agency for less than two months, has no right to appeal her involuntary resignation claim to the Board. . . .
Temporary employees do not qualify for restoration rights unless they were appointed to the temporary position pending establishment of a register (a “TAPER” appointment). The appellant was appointed a City Carrier Assistant as a temporary employee whose appointment was time-limited, expiring on a specific ...

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